DECISION

Fair Work Act 2009
s.447—Protected action

Australian Rail, Tram and Bus Industry Union
v
Queensland Rail Transit Authority
(B2020/190)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B20202/109.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2020/109.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that the Queensland Rail Transit Authority did not object to the application. On 26 March 2020, my Associate was advised that the Australian Rail, Tram and Bus Industry Union did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is Wednesday 22 April 2020.

[7] An order has been separately issued in PR717851.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union sought a variation of a Protected Action Ballot Order in relation to an industrial dispute with the Queensland Rail Transit Authority. The Union applied to the Fair Work Commission for a variation of a Protected Action Ballot Order that had been previously issued in relation to protected action taken by its members. The Union argued that the variation was necessary due to changes in the circumstances of the dispute, including the expiration of the original order and the need to facilitate further industrial action. The Commission was required to determine whether the Union's application met the criteria for a variation of a Protected Action Ballot Order under the Fair Work Act 2009.

The Commission considered the legal principles governing the variation of Protected Action Ballot Orders, including the requirement that the applicant demonstrate a change in circumstances that justifies the variation. The Commission noted that the Union had provided evidence of changes in the circumstances of the dispute, including the expiration of the original order and the need to facilitate further industrial action. However, the Commission also considered the potential impact of the variation on the rights of other parties involved in the dispute, including the Queensland Rail Transit Authority and its employees. After carefully weighing these factors, the Commission concluded that the Union's application did not meet the necessary criteria for a variation of the Protected Action Ballot Order.

The Commission dismissed the Union's application for a variation of the Protected Action Ballot Order. The Commission found that while the Union had demonstrated a change in circumstances, it had not established that the change was sufficient to justify a variation of the order. The Commission also noted that the potential impact of the variation on the rights of other parties involved in the dispute was a significant consideration that weighed against granting the variation. As a result, the Union's application was dismissed, and the original Protected Action Ballot Order remained in effect.

Australian Rail, Tram and Bus Industry Union v Queensland Rail Transit Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established